Proceeding
pursuant to CPLR article 78 (transferred to this Court by
order of the Supreme Court, entered in Clinton County) to
review a determination of the State University of New York at
Plattsburgh finding petitioner guilty of sexual misconduct in
violation of its Student Conduct Manual.

In the
early morning hours of October 31, 2015, petitioner, who was
a student at the State University of New York at Plattsburgh
(hereinafter SUNY), engaged in sexual intercourse with a
female student (hereinafter the reporting individual) in her
dorm room on three different occasions over an approximately

seven-hour
period. Five days later, the reporting individual went to
SUNY's health center and reported that she had been
sexually assaulted. The nurse at the health center referred
the reporting individual to respondent Butterfly Blaise,
SUNY's Title IX Coordinator (see 34 CFR 106.2),
and filed a report with SUNY's police department. On
November 6, 2015, the reporting individual met with Blaise
and gave a statement detailing the events of October 31,
2015. On February 17, 2016, Blaise notified petitioner via
email that there was a "no contact order" issued on
a "matter pertaining to [him]" that she wanted to
discuss with him. The two arranged to meet the next day. On
February 18, 2016, petitioner met with Blaise and gave her a
statement detailing his recollection of the events of October
31, 2015. Blaise prepared a written summary of the statements
given by both petitioner and the reporting individual.

On May
2, 2016, petitioner received a statement of judicial charges
issued by respondent Larry Allen, SUNY's Director of
Student Conduct. Therein, petitioner was notified that Blaise
was charging petitioner with violating two provisions of
SUNY's Student Conduct Manual because "[i]t was
reported that on 10/31/15, in 142 Harrington Hall, between
12:30am-8:00am, [petitioner] initiated sexual intercourse
with another student three different times without
establishing affirmative consent." Further, the
statement notified petitioner that if he decided to plead
"not responsible" to the charge, he could bring
witnesses and question the "person making the
charge" and directed petitioner to appear "for a
[r]eview of [j]udicial [c]harges and [p]rocedures" the
following day. It is not clear from the record whether
petitioner availed himself of that review. On May 4, 2016,
petitioner was notified that a hearing before respondent
Student Conduct Board (hereinafter the Board) was scheduled
for May 10, 2016. On May 6, 2016, in response to his request
for information, Allen sent petitioner a judicial form that
included a condensed version of the reporting
individual's statement to Blaise, which was characterized
as the "details of [the] violation." The hearing
was held as scheduled and, on May 10, 2016, petitioner was
notified that the Board determined that he was
"responsible" for the charges, and the sanction of
dismissal was thereafter imposed. In accordance with the
student conduct procedures, petitioner submitted an impact
statement with regard to the sanction and, on May 11, 2016,
petitioner was notified that, as a result of the Board's
determination, he would be dismissed from school. Petitioner
submitted a timely appeal and, on May 24, 2016, petitioner
was notified that SUNY's Judicial Appeal Board upheld the
findings of the Board and the sanction of dismissal.
Thereafter, petitioner commenced this proceeding pursuant to
CPLR article 78, which was transferred to this Court.

In
2015, New York enacted article 129-B of the Education Law,
known as the Enough is Enough Law (see L 2015, ch
76). The purpose of this law was to "require all
colleges and universities in the State of New York to
implement uniform prevention and response policies and
procedures relating to sexual assault, domestic violence,
dating violence and stalking" (Sponsor's Mem, Senate
Bill S5965 [2015]). The disciplinary process is outlined in
Education Law § 6444 (5) (b). As explained by the
Department of Education, "[t]his section should not be
read to extend to private colleges the constitutional due
process rights that apply to public colleges. It establishes
minimum requirements for cases of sexual and interpersonal
violence covered by [article] 129-B, but institutions may
offer more rights and requirements" (New York State
Education Department, Complying with Education Law article
129-B at 26 [2016], available at http://www.highered.
nysed.gov/ocue/documents/Article129-BGuidance.pdf).
Particularly relevant here, the law sets forth a definition
of affirmative consent - that all educational institutions
shall adopt - as "a knowing, voluntary, and mutual
decision among all participants to engage in sexual activity.
Consent can be given by words or actions, as long as those
words or actions create clear permission regarding
willingness to engage in the sexual activity. Silence or lack
of resistance, in and of itself, does not demonstrate
consent" (Education Law § 6441 [1]). Although the
version of SUNY's Student Conduct Manual in effect during
the 2015-2016 academic year did not include this express
definition of affirmative consent, the parties do not dispute
that it was proper for SUNY to apply the standards of the
Enough is Enough Law when it responded to the reporting
individual's accusation [1]. Rather, petitioner
contends that SUNY'S determination should be annulled
because he was not afforded due process, the Board was not
properly advised as to the definition of affirmative consent
and the determination was arbitrary and capricious and not
supported by substantial evidence.

We
begin by considering petitioner's claim that he was not
afforded due process [2]. In general, the Enough is Enough Law
requires that colleges and universities implement a
"students' bill of rights" that includes the
right to "[p]articipate in a process that is fair,
impartial, and provides adequate notice and a meaningful
opportunity to be heard" (Education Law § 6443;
see Education Law § 6444 [5] [c] [iii]). More
specifically, the law provides that the minimum process to be
afforded an accused student is: (1) notice of the "date,
time, location and factual allegations concerning the
violation, " as well as the "specific code of
conduct provisions alleged to have been violated, and
possible sanctions"; (2) "an opportunity to offer
evidence during an investigation, and to present evidence and
testimony at a hearing, where appropriate"; and (3) an
ability to appeal the initial determination (see
Education Law § 6444 [5] [b]). Further, in order to
"effectuate an appeal, [an accused student]... shall
receive written notice of the findings of fact, the decision
and the sanction..., as well as the rationale for the
decision and the sanction" (Education Law § 6444
[5] [b]). Throughout the proceedings, an accused student
enjoys "the right to a presumption that [he or she] is
'not responsible' until a finding of responsibility
is made" (Education Law § 6444 [5] [c] [ii]).

We
reject petitioner's claim that he did not receive
adequate notice of the charge against him. The record
confirms that he was first made aware of the reporting
individual's claim in February 2016 when the no contact
order was issued. Immediately following his meeting with
Blaise in February 2016, petitioner provided copies of text
messages that he exchanged with the reporting individual
during the days leading up to and immediately preceding the
events of October 31, 2015, presumably to support his claim
that the alleged conduct was consensual. During the evening
following his meeting with Blaise, petitioner emailed her to
add that he "vaguely remember[ed] asking [the reporting
individual] if she was ok during the second time and she said
yea[h] I'm fine. I'm not sure if this helps but I
vaguely recall that happening." Although petitioner
received the formal charges one week prior to the hearing, he
consented to the hearing date and did not ask for an
adjournment.

As for
petitioner's complaint that he did not receive an
"evidence packet" until the hearing, there is no
"general constitutional right to discovery in...
administrative proceedings" (Matter of Weber v State
Univ. of N.Y., Coll. at Cortland, 150 A.D.3d 1429, 1432
[2017] [internal quotations and citation omitted]), and the
Enough is Enough Law does not alter this general rule. In
context, after receiving this packet at the hearing,
petitioner - who was accompanied by his "advisor of
choice" (Education Law § 6444 [5] [c] [i]) -
requested a "10-15 minute recess to go over [it]"
and he then received 10 minutes to review the packet
prior to presenting his response. Notably, this
packet included petitioner's statement, the text messages
that petitioner had provided to Blaise, the no contact order
and the reporting individual's statement as recorded by
Blaise. At the close of the hearing, petitioner was granted
the five minutes that he had requested to prepare a closing
statement. To the extent that he claims that he was not
afforded adequate time to prepare an appeal, we note that
three days before the Judicial Appeal Board met, petitioner
did not contend that he lacked sufficient information, but
instead declined an invitation to appear, choosing to rely on
a written submission. Under the circumstances, we find that
petitioner was given adequate notice of the charges, and that
such notice afforded him the ability to defend himself at the
hearing before the Board (see Education Law §
6444 [5] [b]; New York State Education Department, Complying
with Education Law article 129-B at 25 [2016]; Matter of
Lambraia v State Univ. of N.Y. at Binghamton, 135 A.D.3d
1144, 1146 [2016]; Matter of Lampert v State Univ. of
N.Y. at Albany, 116 A.D.3d 1292, 1294 [2014], lv
denied23 N.Y.3d 908');">23 N.Y.3d 908 [2014]).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;We also
reject petitioner&#39;s claim that he was denied due process
because he was not permitted to cross-examine the reporting
individual. In general, there is a limited right to
cross-examine an adverse witness in an administrative
proceeding (see Matter of Weber v State Univ. of N.Y.,
Coll. at Cortland, 150 A.D.3d at 1432), and "[t]he
right to cross[-]examine witnesses generally has not been
considered an essential requirement of due process in school
disciplinary proceedings" (Winnick v Manning,
460 F.2d 545, 549 [1972]; see Blanton v State Univ. of
N.Y., 489 F.2d 377, 385 [1973]). The Enough is Enough
Law does not require such cross-examination (see Matter
of Doe v Skidmore Coll., 152 A.D.3d 932, 934 [2017])
[3]. To the contrary, in the event that
charges are filed after a report of a violation is made, a
reporting individual is not obligated to participate in the
hearing (see Education Law &sect;&sect; 6443, 6444
[1] [f]). Under the "Students&#39; bill of rights"
section in the Education Law, the reporting person has the
right to "[m]ake a decision about whether or not to...
participate in the judical or conduct process... free from
pressure by the institution" (Education Law &sect;
6443). This protection is twofold, meaning that a reporting
person is entitled to participate or not in the conduct
process as he or she sees fit, without pressure from the
institution. Contrary to the observation in the dissent, it
would be undue pressure for an institution to advise a
reporting person that a decision not to participate would
hinder the conduct process. Moreover, the reporting person is
entitled to keep his or her identity private at all times
(see Education Law &sect; 6444 [a] [f]) and to
"[w]ithdraw a complaint or involvement from the
institution process at any time" (Education Law &sect;
6444 [1] [i]). While a reporting person may request that
formal charges be filed against the student accused of
violating an educational institution&#39;s code of conduct,
it is the institution that determines whether such charges
are warranted (see Education Law § 6444 [5]
[a]; New York State Education Department, Complying with
Education Law article 129-B at 25 [2016]), and it was SUNY,
not the reporting individual, that ...

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